“Rule of Law” is both a play on my name, and a statement of my values. The rule of law is a foundation for both our liberties and for order. The rule of law respects us as equals. It allows us to organize our lives, plan our futures, and resolve disputes in a rational way. There are those around the world and throughout history who have fought in great struggles for the rule of law. My role is more modest. I am a lawyer at the law firm of Sabey Rule LLP who works with people, assisting them with estate planning, probate and estate administration. I also assist people in resolving disputes about wills and estates. In this blog, I write about some of the legal topics that I deal with in my law practice, and about other legal issues that interest me. In doing so, I hope that I help others learn more about law, and that I encourage discussion about law and law reform. I hope that, in some small way, I help nurture the rule of law. You may contact me at my office at #201 - 401 Glenmore Rd., Kelowna, B.C., Canada; V1V 1Z6; telephone number: (250) 762-6111; email: s.rule@sabeyrule.ca.

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Sunday, April 03, 2016

In the recent decision in Kish v. Sobchak Estate, 2016 BCCA
65, a five-judge panel of the British Columbia Court of Appeal considered how
much deference the Court of Appeal is required to give a Supreme Court Judge’s
finding of facts in a wills variation case decided on the basis of affidavit
evidence, as opposed to a conventional trial where witnesses testify in person. (This is my second post on this case. I
reviewed the facts and the judgement in my previous post. )

An appeal is different from a trial. It is not a rehearing.
Rather the appellant has to persuade the appellate court that the trial judge
made an error, and that the error was of a nature such that the appellate court
should interfere by either changing the decision or ordering a retrial.

The amount of deference the appellate court is required to
give the trail judge’s decision may vary depending on the nature of the alleged
error. It may be one of a question of law, a finding of fact, an inference of
fact or it may involve the exercise of discretion. Some findings are said to be
a mixed questions of law and fact.

An appellate court is not required to defer to a trial
judge’s rulings on pure questions of law. If the appellate court holds that the
judge has made an error of law, the appellate court will substitute its
decision.

But generally greater deference is required for findings of
fact. The leading case in Canada is a decision of the Supreme Court of Canada
in Housen v. Nikolaisen, in which the Supreme Court of Canada reaffirmed that
an appellate court may only interfere with a finding of fact if the court finds
that the trial judge made a “palpable and overriding error.” Another
formulation of the test is that the trial judge’s finding of facts will be
upheld if there is some evidence to support it.

The reasons for this degree of deference on findings of fact
were set out by Justices Iacobucci and Major in the majority judgment as
follows:

15In our view, the numerous bases for
deferring to the findings of fact of the trial judge which are discussed in the
above authorities can be grouped into the following three basic principles.

(1) Limiting
the Number, Length and Cost of Appeals

16Given the scarcity of judicial resources,
setting limits on the scope of judicial review is to be encouraged.
Deferring to a trial judge’s findings of fact not only serves this end, but
does so on a principled basis. Substantial resources are allocated to
trial courts for the purpose of assessing facts. To allow for
wide-ranging review of the trial judge’s factual findings results in needless
duplication of judicial proceedings with little, if any improvement in the
result. In addition, lengthy appeals prejudice litigants with fewer
resources, and frustrate the goal of providing an efficient and effective
remedy for the parties.

(2) Promoting
the Autonomy and Integrity of Trial Proceedings

17The presumption underlying the structure of
our court system is that a trial judge is competent to decide the case before
him or her, and that a just and fair outcome will result from the trial process.
Frequent and unlimited appeals would undermine this presumption and weaken
public confidence in the trial process. An appeal is the exception rather
than the rule.

(3) Recognizing
the Expertise of the Trial Judge and His or Her Advantageous Position

18The trial judge is better situated to make
factual findings owing to his or her extensive exposure to the evidence, the
advantage of hearingtestimony viva voce, and the
judge’s familiarity with the case as a whole. Because the primary role of
the trial judge is to weigh and assess voluminous quantities of evidence, the
expertise and insight of the trial judge in this area should be respected.

In Kish, the Court of Appeal considered the application of the
requirement in Housen that an appellate court defer to a trial judge’s finding
of facts to a wills variation case that was decided on the basis of affidavit
evidence rather than oral testimony. Although usually three judges hear an
appeal in the Court of Appeal, the Court may sit as a five-judge panel if
requested in order to reconsider prior decisions.

One rationale for deferring to a trial judge’s finding of
facts is that the trial judge has the advantage of seeing and hearing the
witnesses, and an appellate court does not. But it is fairly common for the Supreme
Court of British Columbia to hear summary trials in which the evidence is put
in by affidavits, and witnesses either do not testify in the presence of the
judge at all, or there is more limited oral testimony. In a previous post, I
reviewed the number of summary versus conventional trials in reported decisions
over a three year period and found that just under half were summary trials. In
a summary trial without oral testimony, it could be argued that the trial judge
does not have an advantage in making findings of fact over an appellate court
which may review all of the written evidence.

The Court of Appeal also considered the case authorities
dealing with the standard of review of the exercise of the trial judge’s
exercise of discretion when varying a will to make the provision he or she
considers “adequate, just and equitable in the circumstances.” In a Supreme
Court of Canada case, Swain v. Dennison[1967] S.C.R. 7, the Court held
that the British Columbia Court of Appeal may “reach its own conclusion as to
the discretion properly to be exercised.” Based on the Swain decision, there
appears to be a lower standard of review of an exercise of a trial judge’s
discretion when varying a will than when a judge exercises discretion in other
areas of law.

Madam Justice Newbury, writing for the Court of Appeal,
distinguished between a finding of fact and the exercise of discretion. The
judge does not exercise discretion in finding facts. The judge may have
discretion in choosing a course of action once he or she has made findings of
fact.

She considered whether a lower standard should be applied in
making findings of fact if the trial proceeded summarily based on affidavit
evidence in a wills variation case than if the trial was a conventional trial
based on oral testimony. The Court of
Appeal held that the same standard for findings of fact applies in both cases:
palpable and overriding error. She wrote:

[43]Drawing
all of these threads together, there are two possible approaches to the
relationship betweenHousenon the
one hand, andSwain/Priceon the other
in appeals from summary trial judgments under the WVA:

(a) All “findings” of a trial
judge, including those that involve the exercise of judicial discretion, are
reviewable by this court without deference,exceptfindings
based on oral testimony, which are subject to theHousenstandard; or

(b) A trial judge’s exercise
of discretion may be reviewed without deference, butallfindings of
fact (whether based on oral or affidavit evidence) are subject to theHousenstandard.

[44]In
my view, the second alternative is the preferable one. It is simpler than the
first and does not require this court to determine in every case whether a
trial judge’s findings were based on oral or affidavit evidence or both,
whether the witness was cross-examined on the point, etc. More importantly, it
reflects the trend to increased deference to trial judges that has
characterized civil law in Canada in the last few decades. This is not to
suggest that there is no principled reason for distinguishing between oral and
affidavit evidence (the reason being that the trial judge sees the witness at
trial and a court of appeal does not); butHousenand its
predecessors did not make that distinction in formulating the current standards
of review. (Indeed the Court observed at para. 25 ofHousenthat there
were other reasons to defer to trial judges.) Further, as we have seen, the
distinction was not made inSwainitself.

[45]I
propose to address the grounds of appeal and cross-appeal, then, on the basis
that while this court must defer (i.e., apply the “palpable and overriding” or
“no supporting evidence” standard) to findings of fact made by the trial judge,
we are not bound to defer to her exercise of discretion – i.e., we are not
bound to apply the standard described in Oldman River[v.Canada (Minister of Transport) [1992] 1 S.C.R. 3]andPenner,
supra.

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Rule of Law web-log is intended for general educational purposes only, and you may not rely on its contents for legal advice. Please keep in mind that the laws of British Columbia are often different from the laws of other Provinces of Canada, States of the United States of America, and other countries. Furthermore, the law changes, and what was once an accurate statement of the law, may now be outdated and inaccurate. If you have a specific legal problem or issue, please consult a lawyer who is familiar with the laws of your province, state or country. Neither reading this blog, nor sending me an unsolicited email will create a solicitor and client relationship with me.